July 24, 2005

And uses it in a NYT op-ed to hint that Judge Roberts might need to reveal whether he would overrule Roe v. Wade. Beldar skewers him as thoroughly and painfully as can be done in this age of Google and Westlaw.

So what's worse: Specter making up a term and claiming "legal scholars" use it? Or Specter being dumb enough not to realize there's a such thing as computer research and that scores of lawyers and lawprofs are monitoring the nomination process and blogging about it?

IN THE COMMENTS: A commenter brings up a 1976 use of the term in a law review article, and I respond, noting that old usage -- which I don't remember ever seeing -- was not anything close to what Specter is using it for.

I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. See Casey, 505 U.S. at 844-46 ("Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973), that definition of liberty is still questioned. . . . After considering the funda-mental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."). And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart, 2000 WL 825889, at *4 (June 28, 2000) ("[T]his Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L.Ed.2d 674 (1992). We shall not revisit those legal principles.").

There's something to this. Let's see if this notion is used to require Roberts to commit to leaving Roe alone.

AND: Luttig's use of the term "super-stare decisis" is unique in the case law, but I did find three uses of the term in the law review file on LEXIS, including one referring to Casey, written by Lawprof Earl Maltz. All three use the term only in the context of being critical that a precedent is regarded as especially invulnerable. Here's Maltz:

The theoretical problems with the Court's opinion [in Casey] are even more troubling. The implications of the argument are breathtaking. The analysis reverses the accepted view that interventionist constitutional decisions should be granted less protection under the doctrine of stare decisis because they cannot be corrected by other branches of government. In essence, the opinion asserts that if one side can take control of the Court on an issue of major national importance, it can not only use the Constitution to bind other branches of government to its position, but also have that position protected from later judicial action by a kind of super-stare decisis.

And let's be clear that Luttig's use of the term "super-stare decisis" is also critical of the idea. Even if we translate Spector's "superprecedent" to "super-stare decisis," there's still no accepted legal concept here. Yet, clearly, it is well-understood that the Casey Court purported to make a final decision about the permanence of abortion rights.

I am not a Spectorfan, (no space intended) but I sometimes have fun coining new words. For instance i just coined the word, "spectorfan"(noun. American colloquial- a brainless, non-thinker, who follows Senator Arlen Spector)

Umm, if Beldar had bothered to search law review articles -- which is where one would expect to find the thoughts of "legal scholars," as Specter describes them -- he would have discovered that the term was coined by Landes and Posner in 1976, and has been used by other writers since then.

Iocaste: Lexis shows 6 uses of the word "super-precedent" in the law reviews files, referring to the Landes and Posner notion of a precedent that is so effective in settling the law that it causes other cases not to be brought on the same issue. I'll grant you that. But I'd never heard the term before and Specter isn't using it to mean what Landes and Posner used it for. They were talking about the lack of cases on a particular point being possibly caused by a conclusive precedent in the past. That's sure not Roe v. Wade.

Specter said: "Some legal scholars attach special significance to what they call superprecedents, which are decisions like Roe v. Wade that have been reaffirmed in later cases."

It's not just not the Landes-Posner concept, it's the polar opposite. If theirs is the definition of superprecedent, Roe should be regarded as a microprecedent, because people keep wanting to test it again and again with more cases (and legislation provoking cases), so its stature purely as precedent has been as weak as it can be, especially since repeated reaffirmations haven't gotten rid of this sense that it's about to cave.

Prof. Althouse, I appreciate the link, along with your commentary and that of your readers. I'm often very snarky, and I was indeed amused by the popular press references that Google turned up. But I genuinely was asking whether this is a term or a concept that's meaningful, that's out there and in use, that I hadn't run across.

So I appreciate iocaste's comment, and readily agree that I should have thought to search law review articles as well as federal precedents; and I likewise appreciate Prof. Althouse's follow-up on that.

One other thing I'll point out here: a commenter on my blog pointed me to an interesting opinion by Judge Luttig of the Fourth Circuit that used the term "super-stare decisis" to describe Roe/Casey. Even if that's what Sen. Specter was attempting to refer to, though, that case is about how the lower federal courts should faithfully interpret and apply existing Supreme Court precedents without playing dramatic or political procedural games. It's basically a deferential statement to the Supreme Court, rather than a statement about what standards the Supreme Court ought to apply with respect to stare decisis.

So I'm still basically at a loss to understand what Sen. Specter was referencing. But I suspect that op-eds like this one are not scribbled on the back of an envelope in the back of a limo, and that instead, some bright young staffer either vetted this or, perhaps, suggested it. I think it's not offhand, but has a purpose. And I genuinely don't know what that is.

Beldar: I reveal what I think his purpose is in the first sentence of my original post. I think he's saying that Roe is a special precedent about which the Senate in fact has a right to demand a commitment to upholding.

The Democrats know they brought Bork down by making him express his hostility to Roe. I felt back at the time that this locked the right of privacy into constitutional law in a special way: if you can't be confirmed to the Supreme Court without believing it, than this will become what the law is. But the move of refusing to say what one thinks about it wrecked that Senate strategy. I think the Democrats are trying to find a way back to the old strategy by characterizing Roe as a different, special sort of precedent that isn't subject to the usual refusal to answer. I'll keep an eye out to see if anything more is made of this new idea.